Mere use of term "irrevocably" in Talaqnama does not invalidate divorce if reconciliation efforts made: Kerala High Court

The Kerala High Court recently held that the use of the term "irrevocably" in a talaqnama does not invalidate a divorce when reconciliation efforts were made by the parties before and after the pronouncement of talaq (A Sajani v. Dr B Kalam Pasha).

A Division Bench of Justices AK Jayasankaran Nambiar and Mohammed Nias CP held that what makes pronouncement of talaq illegal is the feature of instant irrevocability.

"The feature of instant irrevocability takes in two independent features – instantaneousness and irrevocability - both of which contribute to making the practice legally odious," the Court opined.

In the instant case, since reconciliation efforts were pursued before pronouncement of talaq, it could not be held as instantaneousness, the Court held.

"The talaq in the instant case has to be taken as pronounced after due consideration and not instantaneousness owing to the reconciliation efforts pursued by the parties before its pronouncement," the order stated.

With regard to the feature of irrevocability, the Court found that the use of the word ‘irrevocably’ in the talaqnama is certainly suggestive of an intimation by the respondent to the appellant that he was not ready to reconsider his decision.

However, the Court opined that since reconciliation efforts were pursued even after pronouncement of talaq, it cannot be held that the parties considered the talaq was irrevocable.

"We hold therefore that, notwithstanding the use of the word ‘irrevocably’ in the talaqnama, the respondent must be seen as having pronounced a talaq ahsan, that became irrevocable only on the expiry of the period of three lunar months immediately following the single pronouncement of the talaq," the Court held.

The Court issued the order in an appeal preferred by one A Sajani against an order of the Family Court which upheld the talaq pronounced by her husband Dr B Kalam Pasha, a serving judicial officer in the State of Kerala.

The appellant had approached the Family Court seeking a declaration that the talaq was invalid, as well as restitution of conjugal rights and payment of maintenance in terms of Section 125 of the Code of Criminal Procedure CrPC on the premise that the marriage continued to subsist in the eyes of law.

The Family Court dismissed the appellant's plea, pursuant to which she approached the High Court challenging the same.

While the appellant insisted on appearing as party in person, the Court appointed legal aid counsel Vanaja Ramaswamy to represent her and Senior Advocate Krishnan Unni as amicus curiae.

It was contended on behalf of the appellant that the talaqnama was not valid since:

(i) It was post-dated and the date was corrected by the respondent only subsequently. The said correction was not attested by any witness

(ii) There was only a single pronouncement of talaq and it was made irrevocable, thereby rendering it illegal and void going by the law laid down in Shayara Bano v. Union of India

(iii) No valid grounds had been established by the respondent that would have enabled him to divorce her.

She also claimed maintenance of ₹1 lakh per month from the respondent under Section 125 CrPC.

Advocate Babu Karukapadath, appearing for the respondent, submitted that the appellant had always been hostile towards him and his daughters from his previous marriage despite several attempts at reconciliation involving families of both parties.

He contended that when left with no other option, the respondent chose to pronounce the talaq. On discovering that the date mentioned in the talaqnama was mistakenly typed, he intimated her of the typographical mistake through another letter dated soon after.

He asserted that what was pronounced was a ‘Talaq Ahsan’ and the use of the word ‘irrevocably’ was only to alert the petitioner of the seriousness of the decision and to indicate that it was not to be taken lightly.

He further submitted that the respondent was ready and willing to revoke the talaq if the petitioner was willing to amicably resolve the issues between them, as evidenced by the reconciliatory talks that took place in the presence of mediators.

Referring to the Supreme Court's Shayara Bano judgment, in which the practice of “Talaq-e-Biddat” or Triple Talaq was set aside, the Court noted that what the Constitution Bench in that case found objectionable was the instant irrevocability that rendered the practice ‘manifestly arbitrary’.

With regard to the feature of instantaneousness, the Court found that even though the meetings for reconciliation were not successful, as per the judgment of the Kerala High Court in Kunhimohammed v. Ayishakutty, it can be held that there is a reasonable cause for pronouncement of talaq,

Moreover, since the respondent is a serving judicial officer of the State, the Bench opined that it cannot be presumed that he had used the word 'irrevocably' without understanding its significance. The Court further said that had it not been for subsequent events that unfolded, it would have held the pronouncement of talaq as illegal on this ground.

However, the efforts at reconciliation even after pronouncement of talaq indicated to the Court that the parties never considered the talaq pronounced as irrevocable from that date onwards.

Interestingly, while no such prayer was made in the petition, the Court decided that it would permit the appellant to claim a fair and reasonable compensation as per Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

However, the appellant was not ready to accept the amounts offered to her and insisted that she would not settle for any amount less than ₹1.20 crore. Under the circumstances, the Court dismissed the appeal as being devoid of merit.

[Read Judgment]